ATrain Education

 

Continuing Education for Health Professionals

NY: Child Abuse and Maltreatment/Neglect for Mandated Reporters

Module 3

Legal Framework for Mandated Reporting in NYS

Legal Protections

Immunity from Liability

The Social Service Law provides immunity from liability for mandated reporters who report to the SCR, and this can be especially important for a reporter concerned about legal obligations as a reporter and legal obligations to client or patient confidentiality. If the report was made in good faith, a mandated reporter is immune from any criminal or civil liability. The good faith of a mandated reporter is presumed. Thus, if someone accuses you of making a false report in bad faith, they must prove gross negligence or willful misconduct on your part (SSL §419, NYSOCFS, 2017, 2016, 2011).

Source Confidentiality

New York’s Social Service Law provides confidentiality to those who make a report. OCFS and local CPS are not permitted to release to the subject of the report any data that would identify the source of a report, unless the source has given them written permission to do so. Information regarding the source of the report may be shared with certain individuals (eg, courts, police, district attorney), but only as provided by law (SSL §422(4)(A), NYSOCFS, 2016).

Protection from Retaliatory Personnel Action

Section 413 of the Social Services Law, which defines mandated reporters, also specifies that no medical or other public or private institution, school, facility, or agency shall take any retaliatory personnel action against an employee who makes a report to the SCR. Furthermore, no school, school official, childcare provider, foster care provider, residential care facility provider, hospital, medical institution provider, or mental health facility provider shall impose any conditions, including prior approval or prior notification, upon a member of their staff mandated to report suspected child abuse or maltreatment (SSL §413, NYSOCFS, 2016).

Legal Penalties

Failure to Report

Anytime mandated reporters suspect child abuse or maltreatment—and fail to report it—they can be found guilty of a Class A misdemeanor. This misdemeanor can result in a penalty of up to a year in jail, a fine of up to $1,000, or both. In addition, a mandated reporter who fails to make a required report to the SCR can be sued in civil court for monetary damages for any harm caused by the failure to report, including wrongful death (NYSOCFS, 2017, 2016).

False Reporting

The New York Social Services Law contains a provision (§422.14) by which suspected cases of false reporting of child abuse to the SCR can be referred to an appropriate law enforcement agency or district attorney. Such false reports are a violation of the Penal Law (Section 240.50(4).

Mandated Reporter Records

Section 415 of the Social Services Law requires mandated reporters who make a report to the SCR that results in an investigation of an allegation of child abuse or maltreatment to comply with all requests made by CPS for records relating to that report. This includes information that may be covered by privileges stipulated in state law (eg, psychologist-client privilege) and any other law to the contrary (SSL §415, NYSOCFS, 2017).

Records available to CPS include:

  • Records relating to diagnosis, prognosis, or treatment
  • Clinical records of any patient or client (NYSOCFS, 2017)

The purpose for requesting these records is to facilitate a full investigation of allegations of child abuse or maltreatment. Disclosure of substance abuse treatment records, however, is regulated by federal law and must follow that law’s standards and procedures (NYSOCFS, 2017).

Written reports from mandated reporters shall be admissible in evidence in any proceedings relating to child abuse or maltreatment. It is important to be aware that “federal Health Insurance Portability and Accountability Act of 1996 (HIPAA) regulations [45 CFR 160.203(c)] state that HIPAA privacy rules do not apply to reporting of child abuse.” Exceptions stipulate that healthcare providers suspecting child abuse or maltreatment must report it and provide material in accordance with state law (NYSOCFS, 2017).

The mandated reporter, as the owner of the records, makes the first determination of what information being sought by CPS is essential to its investigation. If CPS is requesting additional information essential to the report that the reporter is unwilling to release, CPS should clearly explain how the records are pertinent. If the reporter still does not produce the reports CPS can provide an appropriate authorization or release, or obtain a court order requiring the records be produced (NYSOCFS, 2017).

Did You Know . . .

Disclosure of substance abuse treatment records is regulated by federal law.

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